Beach Petroleum Nl v. Cortaus Ltd.

CACV000004/1996

IN THE COURT OF APPEAL

1996, No. 4
(Civil)

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Coram: Bokhary, J.A. in Chambers

Date of Hearing: 3 April 1996

Date of Judgment: 3 April 1996

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J U D G M E N T

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Bokhary, J.A.:

1. It is perfectly legitimate for someone in the position of Kleinwort Benson, being a bank whose customer's documents are sought, to seek the vacating of hearing dates by reference to its own legitimate interest in avoiding the costs of an appeal which may turn out to be unnecessary if one were only to wait and see.

2. It is suggested on behalf of the company in liquidation that I should take the view that Kleinwort Benson's stance is adopted at the behest of a customer of its which the company in liquidation is pursuing for fraud.

3. I do not feel justified in viewing Kleinwort Benson's application as being anything other than one made in perfect good faith.

4. In approaching a request by the Australian courts, the Hong Kong courts should of course act by reference to the principle of comity.

5. There is a dispute between Mr Thomas for Kleinwort Benson and Mr Scott for the company liquidation as to the dictates or requirements of comity in the present case.

6. One extreme is Mr Thomas's suggestion - and I will be forgiven if I do not put it as well as he had put it himself - that the Hong Kong courts should never act upon the request by the Australian courts until it is known whether the highest Australian court will stand behind that request.

7. At the other extreme, Mr Scott suggests - and again I will have to be forgiven if I do not put it as well as counsel had put it himself - that the Hong Kong courts should take the Australian request as we find it at the moment without pausing to consider what might happen if and when the matter reaches the highest Australian court, and without going into the question in any way of whether the documents are likely to be put to immediate good use.

8. Between those two extremes - and I do not use the word "extreme" in any pejorative sense - there is a middle course. And it is one which I propose to follow. The middle course is to await, within reason, the opinion of the highest Australian court unless it is likely that the documents in question would be put to immediate good use, so that waiting will not do.

9. I recognise that Mr Scott, in dealing with the question of use, is at two disadvantages. One is that he is dealing with it under protest anyway since the question arises under the middle course rather than the one which he supports.

10. Secondly, he has limited instructions as to what he may say as to the use to which the documents would be put. Although his instructions are limited, he has told me that his client proposes to employ the documents, as soon as it can get them, in settlement discussions. That, I suppose, covers a multitude of things including formulating its own position and persuading the other party to the negotiations to see things its i.e. Mr Scott's client's way.

11. This is not the easiest matter to decide. But at the end of the day, I have come to the conclusion that what Mr Scott has been in a position to say to me does not make it likely that the documents would be put to immediate good use.

12. If the appeal is to be adjourned, I do not see how, in practical terms, one can adjourn it on any basis other than sine die with liberty to restore. Nor do I consider it appropriate to try in anyway to define or even to indicate the sort of circumstances which would justify the appeal being brought back for listing.

13. In those circumstances, I will simply make an order for adjournment in the terms sought by Kleinwort Benson's summons of the 28th of last month in which it is asked that the appeal scheduled for hearing on the 16th and 17th of this month be adjourned sine die with liberty to either party to restore.

14. I will hear counsel on the question of costs as soon as I have, as I must, thank them for the assistance which I have received.

Costs

15. As far as costs are concerned, what I propose to do with the costs of the application is to order that they be Kleinwort Benson's costs in the adjourned appeal.

16. As far as any costs occasioned by the adjournment are concerned, I propose to reserve those to the Court of Appeal to deal with in the event of the adjourned appeal coming back on for hearing or, in the event of the appeal not coming back on for hearing, to preferably myself but possibly any other single judge of the Court of Appeal to be dealt with on an application for that purpose.

17. In that regard, I give liberty to apply rather than to restore. That would involve the costs of a summons; but I think that it would be better all round since it would make it easier for everybody to know beforehand just what is being sought.

(K Bokhary)

Justice of Appeal

Representation:

Mr John Scott QC (instructed by M/s Allens Arthur Robinson) for the respondent

Mr Michael Thomas QC (instructed by M/s Simmons & Simmons) for the appellant